McCutcheon v. FEC (and freedom, money, and responsibility)

With the McCutcheon v. FEC ruling, we witness another decision in favor of inequality. While there were many erroneous conceptualizations running the majority decision, of principal importance is their understanding of money. For the conservatives on the court, it seems money is just a thing which carries no intrinsic weight, it may be gifted for nothing in return because it is just some object that a possessor may use as they see fit. But as the political theorist G.A. Cohen argued, money is no object; money is freedom in a capitalist society. The conservatives of the Supreme Court face a philosophical dilemma. Either money is not freedom, and in which case restrictions on political contributions are trivial, such that other factors tip the scales towards not overturning those restrictions, or money is freedom, but in which case those spending restrictions should stay in place, for reasons I shall soon make clear. Either way, such restrictions are warranted.

If money is freedom then restrictions on political spending are restrictions on freedom. As such, it seems obvious that this is the line of argument the conservative justices will want to take, but as we shall see, this conceptualization does not support their conclusions. If money is freedom, then poverty is a lack of freedom. As a society we have decided that poverty is acceptable (apparently!), such that we have decided that it is acceptable for persons to lack freedom. The question then is whether we find it acceptable for there to be restrictions in freedom, in the way of having rules for what wealthy and free persons may do with their money – their freedom.

We accept that people are poor and thus lack freedom if those persons are responsible for their poverty and lack of freedom – we tend to think it unfair if someone is made to suffer from bad luck if they made fiscally responsible choices throughout their life. If the wealthy are able to use their freedom to influence politicians to support legislation that benefits the wealthy, such as through tax cuts, then the wealthy will have a louder voice in policy discussion than the poor, and tax cuts will be balanced by cuts in welfare and assistance programs. Cutting funds for these programs has the result of making poor persons even more poor, which is to say, to take away even more freedoms from the poor. Here the poor are made less free by the actions of others, but as we only have reason to accept as just poverty that is caused by the poor person, we have no reason to accept this further lessening of freedom. As this lessening of freedom is caused by the unrestricted freedom of the wealthy and free, we have good reason to restrict the freedom of the wealthy in order to prevent the poor from being even less free.

I have tried to answer the conservative justices on their own terms by arguing that if money is freedom then there ought to be restrictions on political contributions. If money is not freedom then restrictions on political contributions by the wealthy are harmless, and other reasons for such restrictions overwhelm this aspect. Either way, we are lead to the conclusion that there should be restrictions on political contributions. I do think that money is freedom, such that I think it is more just for there to be restrictions on freedom for the wealthy, rather than the theft of more freedom from the poor.

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  1. #1 by jmeqvist on April 6, 2014 - 2:59 pm

    Interesting post, and I think I agree with you.

    What do you and Cohen mean you say money is freedom in a capitalist society? Is it that the more money you have within the capitalist society the more opportunities you have? Or is it something else?

    I appreciate that you came at this issue from the standpoint of freedom as my instinct would be to argue that the reason why money’s influence needs to be limited in politics is that democratic equality requires that people have equal political resources, and that no one should be able to use their resources to have greater influence than another. But this argument tends to fall on deaf ears when one is arguing with many American conservatives.

    • #2 by ausomeawestin on April 8, 2014 - 4:27 pm

      Thanks, and admittedly I find your argument more convincing than the one I laid out above, as there are flaws in my argument, which I think are due to approaching the conversation from the misguided perspective of freedom. But it was worth a shot.

      And yes that is essentially what Cohen means. Cohen was responding to the conservative view that poverty is merely a lack of means, and as freedom is the lack of interference, “poverty does not carry with it lack of freedom” (“Freedom and Money”, pg 168 in On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy).

      Cohen argues that in a capitalist society property rights create interference on use of products and services unless money is used to lift that interference. So, as money provides lack of interference, money is freedom, such that those who lack money lack freedom. In his words, “A property distribution just is […] a distribution of rights of interference. If A owns P and B does not, then A may use P without interference and B will, standardly, suffer interference if he attempts to use P. But money serves, in a variety of circumstances (and, notably, when A puts P up for rent or sale), to remove that latter interference. Therefore money confers freedom” (“Freedom and Money”, pg 176).

  2. #3 by SelfAwarePatterns on April 9, 2014 - 1:11 pm

    An excellent post. Well said!

    Unfortunately, I think the conservatives on the court are simply being loyal to their political patrons and the rest is rationalization. (You do a good job showing it to be shallow.) Ever since Bush v Gore, I’ve noticed that on political matters, justices take care of the people who buttered their bread, with only a very few case exceptions.

    • #4 by ausomeawestin on April 9, 2014 - 6:14 pm

      Thanks for the kind words!

      Yes, I think you are quite right that the justices seem to be mostly interested returning the favor for their title.

      It strikes me as strange that of the three branches of government, there is no real check or balance on the Supreme Court, at least in practice. Supposedly the three branches act as checks on each other, but all that seems to amount to for the Supreme Court is that the sitting president appoints a new justice when one retires — not much of a check. I wouldn’t be inclined to think that is a problem if we didn’t have unjust decisions like this one; I, like most Americans I suspect, have been complacent with the idea that the Supreme Court just is “the law of the land”. It’s only when we step back for a second do we realize how different the Supreme Court is from the other branches. But hey, I don’t know much about law, so these comments might be ridiculously ignorant of the need to keep a branch isolated from the whims of the public (although Congress is supposed to be isolated in that way as well…).

      Anyways, thanks for sharing your thoughts, your contribution is always appreciated.

      • #5 by SelfAwarePatterns on April 9, 2014 - 7:02 pm

        Thanks. In theory, congress can submit constitutional amendments to the states that would constrain the supreme court. Of course, in practice that is extremely difficult, but it has happened in the past. (The Dred Scott decision was overturned by the 13th amendment, albeit after a civil war.)

        But the justices do have enormous power. That’s why every appointment is critical, and why it very much matters who we elect to the Presidency and the Senate.

      • #6 by ausomeawestin on April 10, 2014 - 1:40 pm

        Didn’t know that, thanks for sharing your knowledge.

        I was speaking about this with a lawyer and they noted that if a law is found unconstitutional by the SC then Congress could change the law in such a way to get around that unconstitutionality but still have the same intent. Still, as you say, justices do have incredible power, and I think the mentality that the SC represents the law of the land would create a backlash against Congress rewriting laws in this way.

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